In a suit in rem, it is not usual to render a decree in personam, but if the case proved shows a clear right to recover in personam, the libellant may be permitted, after a decree in rem, to introduce the proper allegations in personam, and proceed upon them to a further decree against the person. (a) 548. After the decree is made, it sometimes appears that, by accident, oversight, mistake, or misapprehension, the decree is erroneous. In such cases, the Court of Admiralty possesses the power of correcting or varying the decree. Such a variation, however, should be confined to the alteration of an error arising from the defect of knowledge or information upon a particular point in the case, and the error must be brought to the attention of the court with the utmost possible diligence.(b) § 549. Costs.-The costs in Admiralty are entirely under the control of the court, and they are, therefore, often made the means of amercing either of the parties for misconduct, and are a salutary check upon mischievous litigation. They are sometimes, from equitable considerations, denied to the party who recovers his demand, and they are sometimes given to a libellant who fails to recover any, when he was misled to commence the suit by the act of the other party. In prize cases and salvage cases, the property is sometimes acquitted on payment of costs by the claimant. In the Massachusetts District, in a hard case, the court decreed for a libellant for his whole demand, with costs, and then allowed a set-off of a demand against debt and costs, so that although the set-off was more than the debt, still the libellant had a large portion of the costs.(c) It is evident that no system of rules can be laid down in a matter so purely in the discretion of the court. The general rule is, that costs follow the decree-and circumstances of equity, of hardship, of oppression, or of negligence, induce the court to depart from that rule in a great variety of cases. 1 W. Rob. 21. («) Betts' Prac. 99. Boyd's Proc. 28. Conk. Prac. 774, 775. (b) Betts' Prac. 100. 2 Chit. Gen. Prac. 538. (c) Ware, 395. Dunlap, 87. Dunlap, 102. Hag. 90. Edw. 70. 2 W. Rob. 306. 2 Under ordinary circumstances, a demand of payment of a debt before suit brought, is so obviously required by fair dealing, that Courts of Admiralty, in the exercise of their practical equity powers, sometimes insist upon proof of such demand, before a decree for costs will be given.(a) An unconscionable demand, or a demand pursued in a vexatious or unconscionable manner, will not usually carry costs. When a libellant has put forward a principal demand, which he makes no real attempt to enforce, or which he must know to be unfounded, and recovers only a comparatively trifling amount, which would not have been resisted, it is not usual to allow him costs. Costs are never decreed against the Government.(b) § 550. Fees. There is no legal tariff of fees in Admiralty, and the Supreme Court could not render a greater service to the Admiralty Courts than to establish a moderate tariff of fees in all cases, making the practice in this respect uniform through out the United States. At present, there is a great diversity, springing, in some degree, from the fact, that where there is no fixed rate, there will always be a strong tendency to assimilate the rates to those in the State Courts of Common Law and Equity, although there cannot be found a statute in which the practice of the Admiralty Courts is named, where it is not evident that uniformity and not diversity is the purpose of the law, and where it is not equally evident that the Congress con. sidered the Admiralty practice as peculiar, and in no manner to be classed with, or likened to, the practice of the Courts of Common Law and Equity. The fees of Proctors and Advocates are now subject to the regulation of the courts, under their general power, to regulate the practice. The rates established in the Southern District of New York will be found in the appendix. They have always been less than the fees in common law and equity. They are, in a measure, made up from the fee bill of the Court of Admiralty of the State of New York, before the Constitution, as established by a statute of that (a) Dunlap, 91, 92. 1 Chit. Plead. 362. (b) 1 W. Rob 328. 1 Notes of Cases, 305. 10 Jur. 506. 4 Notes of Cases, 571. State, and, so far as that State was concerned, adopted by Congress in the first Process Act of September 29, 1789. The statute will be found in the Appendix, where it is re-printed as fit to furnish, in some manner, a guide to the judgment of the courts, in establishing a tariff of fees for the United States, in Admiralty causes. (a) The fees of the Clerk and the Marshal are regulated by the Acts of Congress, and, in some cases by the discretion of the Court. Vid. the Process Act of September 29, 1789, continued in force till the Process Act of May 8, 1792. Also, the Admiralty Fee Bill, in the Act of March 1, 1793-the Act of 28th February, 1799-and the Civil Appropriation Act, of 3d March, 1841, (the proviso to the clause making judicial appropriations.)(b) 551. Whenever there are several actions or processes against persons who might legally be joined in one action-and whenever there are several libels against any vessel or cargo which might legally be joined in one libel, only the costs of one suit can be allowed, except on special cause shown, for the multiplicity of suits. And in causes of like nature, or relative to the same question, the court has full power to make any orders with a view to avoiding unnecessary costs, and especially to consolidate causes. The order to consolidate will be made only on application to the court, on notice to the other party. If Proctors, Advocates, or other persons managing or conducting causes, appear to have multiplied the proceedings, so as to increase costs unreasonably and vexatiously, they may be required, by order of the court, to satisfy any excess of costs so incurred; and the court will protect the Proctor from a collusive settlement to the prejudice of his right to his costs.(c) (a) Vid the Appendix. (b)" The expenses in Courts of Admiralty, are frequently a subject of complaint by those who are not sufficiently acquainted with the proceedings there, and the manner in which they arise. Those sums, which seem most to startle by their large amount, relate solely to the custody of the property, a duty which does not devolve upon any other species of Courts of Justice." Stewart's R. 588. They are not higher than what are usually and voluntarily paid and received by mer. chants for like services. Ibid. 489. (e) Act of July 29, 1813. Betts' Prac. 121. Ibid. 10. Ware, 476. 552. The court discourages hard and sharp practice, either in the proceedings in court, or in the negotiations between the parties-hurrying up a suit without a demand of payment or reasonable indulgence—refusing to listen to officers of adjustment-making technical objections to a tender sufficient in amount-if brought before the court, are likely to be remembered in the decree upon the question of costs, and, in like manner, the court encourages efforts to settle, and a tender or offer to pay a reasonable sum, and will, under all circumstances, hold an offer to pay as equivalent to a technical tender, and a declaration in advance, that less than a certain sum will not be accepted, will be considered as waiving a formal tender.(a) It is the common practice of Courts of Admiralty, to give counsel fees either in the shape of damages, or as a part of the costs.(b) 553. It is often the case, from the peculiar form of Admiralty proceedings, that justice requires that costs should be apportioned-as, when the court discriminates between parties in its decree, and some appeal and others do not-and when the property is in custody in several causes, and the fees of the Marshal for the custody and keeping of the property, have accrued for a common benefit to unconnected parties in such and similar cases, the court will sometimes apportion the costs. (c) Costs are taxed by the clerk, on notice to the opposite partysubject to an appeal to the Judge-and when the costs are to be paid out of a fund in court, the taxed bill should be filed. ¡ 554. The final decree of the court being pronounced, the Clerk enrols the decree. The enrolment consists of an engrossment of the pleadings, processes, stipulations, orders and evidence in the cause, arranged in chronological order, from the libel to the final decree, constituting a complete written history of the cause. The depositions, and exhibits, and documents, if there be any, are inserted at length in the enrolment, as a part of the evidence, and the testimony of the witnesses who are examined in court, is copied from the notes of testimony taken by the Judge. (a) Dunlap, 104-5. Couk. Prac. 711. (c) 2 Law Rep. (new series,) 24. (b) 9 Wheat. 362. 3 Pet. R. 307. CHAPTER XXXIII. Execution. 555. In all cases, the libellant may have an attachment to compel the defendant to perform the decree. This is obtained by order of the court on motion, and upon the attachment, the defendant may be arrested and committed to prison, until he performs the decree, or is otherwise discharged by law or by the order of the court. The court would therefore require cause to be shown why an attachment should issue in the first instance. In cases where the decree is for the mere payment of money, although the rule of the Supreme Court provides that the party may, at his election, have the attachment in such cases, that election is, of course, subject to the discretionary control of the court, who would not allow its process to be made a mere instrument of oppression. If it should appear that the party have goods and chattels, from which the money can be made by a levy, then the proper process is a writ of execution, combining the nature of a capias, and fieri facias, commanding the Marshal or his deputy to levy the amount, of the goods and chattels of the defendant, and for want thereof, to arrest his body to answer the exigency of the execution.(a) 556. The following is the form of an execution : THE PRESIDENT OF THE UNITED STATES OF AMERICA, To the Marshal of the Southern District of New York, Greeting: Whereas, a libel was filed in the District Court of the United States, for the Southern District of New York, on the [L. S.] twenty-eighth day of October, one thousand eight hundred and forty-three, by Elisha Burgess, libellant, against (a) Ad. Rule 21. |